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Flashcards in LG2: Remedies Deck (78)

Civil Justice Reforms 2013

Simmons v Castle 2013


CPR 16.4

(1) Particulars of claim must include –





(a) a concise statement of the facts on which the claimant relies;
(b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2);
(c) if the claimant is seeking aggravated damages or exemplary damages, a statement to that effect and his grounds for claiming them;
(d) if the claimant is seeking provisional damages, a statement to that effect and his grounds for claiming them; and (e) such other matters as may be set out in a practice direction.


PD 16, para 8.2:

The claimant must specifically set out the following matters in his particulars of claim where he wishes to rely on them in support of his claim:
(3) details of any misrepresentation, ...
(8) any facts relating to mitigation of loss or damage


Provisional damages
APA Civil para 41.25-41.31

Risk of onset of an industrial disease say. Traditional damages not good:

a) if never get it, reward is too high
b) if get it, reward is only for risk so is too low


A provisional damages award solves this by:

(i) Awarding current damages based on C's actual medical condition at the time; and

(ii) Permitting C to return to court at a later time if the deterioration (or disease) occurs.


PD 16, para 4.4:
In a provisional damages claim the claimant must state in his particulars of claim:



(1) that he is seeking an award of provisional damages under either section 32A of the Senior Courts Act 1981 or section 51 of the County Courts Act 1984,

(2) that there is a chance that at some future time the claimant will develop some serious disease or suffer some serious deterioration in his physical or mental condition, and (3) specify the disease or type of deterioration in respect of which an application may be made at a future date.


PI claims:

PD 16 para 4.1 - 4.3A

4.1 The particulars of claim must contain: (1) the claimant’s date of birth, and (2) brief details of the claimant’s personal injuries.



4.2 The claimant must attach to his particulars of claim a schedule of details of any past and future expenses and losses which he claims.



4.3 Where the claimant is relying on the evidence of a medical practitioner the claimant must attach to or serve with his particulars of claim a report from a medical practitioner about the personal injuries which he alleges in his claim



4.3A (1) In a soft tissue injury claim, the claimant may not proceed unless the medical report is a fixed cost medical report. Where the claimant files more than one medical report, the first report obtained must be a fixed cost medical report from an accredited medical expert selected via the MedCo Portal (website at: www.medco.org.uk) and any further report from an expert in any of the following disciplines must also be a fixed cost medical report: (a) Consultant Orthopaedic Surgeon; (b) Consultant in Accident and Emergency Medicine; (c) General Practitioner registered with the General Medical Council; (d) Physiotherapist registered with the Health and Care Professions Council. (1A) The cost of obtaining a further report from an expert not listed in paragraph (1)(a) to (d) is not subject to rule 45.29(2A)(b), but the use of that expert and the cost must be justified.

- i.e. whiplash


PD 16, para 12.1; 12.2:
12.1 Where the claim is for personal injuries and the claimant has attached a medical report in respect of his alleged injuries, the defendant should:

12.1 Where the claim is for personal injuries and the claimant has attached a medical report in respect of his alleged injuries, the defendant should:

12.2 Where the claim is for personal injuries and the claimant has included a schedule of past and future expenses and losses, the defendant should include in or attach to his defence a counter-schedule stating: (1) which of those items he – (a) agrees, (b) disputes, or (c) neither agrees nor disputes but has no knowledge of, and (2) where any items are disputed, supplying alternative figures where appropriate.


Fatal Accident Act 1976 Claims

1 Right of action for wrongful act causing death

(1) If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.





Equitable Remedies:

Injunctions are divided into 4:

Note injunctions are divided into:
 Prohibitory injunctions
 Mandatory injunctions
 Interim injunctions
 Final injunctions





Specific Performance




Not about changing the terms - making sure the written instrument matches the oral terms.



(a) Document must be shown not to reflect the agreement between the parties
o In other words, there has been a common mistake in drawing up the agreement
o Or a unilateral mistake by party 1, which is known by party 2, and party 2 does not draw the mistake to the attention of party 1
(b) That affects the legal rights between the parties
(c) Discretionary


Bars to rectification


 Parties cannot be restored to their former positions (but not applied strictly)
 Payment of money under a judgment (after which it is too late to rectify)


Misrep Remedies:

Fraudulent MR

A person induced to enter into a contract by a fraudulent misrepresentation:
(a) can rescind the contract;
(b) claim damages; or
(c) rescind the contract and claim damages


Damages for fraud are intended to put the claimant back in the position he would have been in before the contract was made.

Also, C is entitled to damages for any loss which flows from D's fraud, even if the loss could not be foreseen by D.

Applying these principles, C is entitled to the full price he paid under the contract as damages, but must give credit for any benefits received as a result of the transaction. Benefits might include the market value of the property purchased under the contract at the date of the transaction. Where the fraud has a continuing effect, or if C is locked into the asset, D may have to compensate C for further losses in value to the asset that arise after the date of the contract.


Mitigation and Misrep:

Duty to mitigate once C finds out the fraud


Contrib Neg

Does not apply to fraud



MR Act 1967 s2.


Negligent MR - remedies?


Damages are always recoverable where C enters into a contract as a result of a negligent misrepresentation if damages would have been recoverable in fraud (MRA 1967, s. 2(1)). The measure of damages is the same as in fraud (Royscott Trust Ltd v Rogerson [1991] 2 QB 297).



It is possible to seek to rescind the contract as a consequence of a negligent misrepresentation, but MRA 1967, s. 2(2), allows the court to declare the contract remains subsisting and to award damages in lieu of rescission. It may do so:
 if of the opinion that it would be equitable to do so
 having regard to:-
o the nature of the misrepresentation; and
o the loss that would be caused if the contract were upheld; and o the loss that rescission would cause to the defendant.


Innocent MR

At common law damages were not available for a purely innocent misrepresentation. The only remedy was rescission of the contract.


Damages in lieu of rescission
MRA 1967, s. 2(2)

MRA 1967, s. 2(2), can also be used to convert C's remedy of rescission for innocent misrepresentation into one of damages in lieu of rescission. The same conditions as above apply.


Only one remedy if innocent misrepresentation

Unlike fraudulent and negligent misrepresentations, where both damages and rescission are available, the primary remedy for innocent misrepresentation is rescission, which may be replaced by damages if the court operates s. 2(2).

Only if rescission is still available Flows from "...would be entitled ... to rescind the contract..." in s. 2(2).


Representation becoming a contractual term:

If a representation becomes a contractual term / promise, and is false, C can sue for damages for breach of contract. This may be because:


(a) The representation becomes a term of the contract between C and D; or

(b) C enters into a contract with another person, but the representation made by D is construed as a collateral contract between C and D



(see Remedies Manual pg 59.

Before the MRA 1967, where C was induced to enter into a contract by a misrepresentation that was never incorporated into the contract as a contractual term, C could rescind the contract if the representation was:




(a) fraudulent (common law)
(b) negligent (common law) or (c) innocent (equity)


Loss of right to rescind

Where MRA 1967 s. 2(2) is applied by the court (see above). Only applies to negligent and innocent misrepresentations.


Bars to rescission

 Restitutio in integrum no longer possible
 Affirmation of the contract. Affirmation requires knowledge (subject to estoppel)
 Lapse of time
 Acquisition by a third-party of rights in the subject matter of the contract


Interim Payments

SCA 1981 s32 (5)


In this section “interim payment”, in relation to a party to any proceedings, means a payment on account of any damages, debt or other sum (excluding any costs) which that party may be held liable to pay to or for the benefit of another party to the proceedings if a final judgment or order of the court in the proceedings is given or made in favour of that other party.

This is an exception to the general principle that a D has a right not to be held liable to pay until his liability has been established by a final judgment.


Power SCA 1981, s. 32(1)

As regards proceedings pending in the High Court, provision may be made by rules of court for enabling the court, in such circumstances as may be prescribed, to make an order requiring a party to the proceedings to make an interim payment of such amount as may be specified in the order, with provision for the payment to be made to such other party to the proceedings as may be so specified or, if the order so provides, by paying it into court.


CCA 1984, s. 50 re interim payments?

in similar terms to SCA 1981 s 32(1)


CPR 25 (1) (1) (k) - interim payments?

Interim payments are included in list of interim remedies


Procedure Interim payments?

 Application Notice (N244)
 supported by evidence r. 25.3(2) and r. 25.6(3) = witness statement
 must be served on the respondent to the application (usually the D) at least 14 days before the hearing. r. 25.6(3)
 A defendant who wishes to rely on evidence must file/serve a witness statement in reply at least 7 days before the hearing date r. 25.6(4)
 Any further witness statement in reply by C must be filed/served at least 3 days before the hearing: r. 25.6(5)


Evidence in support of Interim payments?

PD 25B para 2.1
Evidence in support should include:
a) The sum sought by way of interim payment
(b) The items or matters in respect of which the interim payment is sought
(c) The sum of money for which final judgment is likely to be given
(d) The reasons for believing that the grounds for the application are satisfied (ie that if the claim went to trial C would succeed and win substantial damages)
(e) In a personal injuries claim, details of special damage and past and future loss
(f) Documents in support, including medical reports (g) In a PI case, D should obtain a certificate of recoverable benefits and file it at the hearing: PD 25B para 4.1


Timing interim payments

 not until the end of the time for filing the A/S for the relevant D (CPR r 25.6(1))
 = 14 days after the deemed date of service of the PoC: CPR, r. 10.3
 as soon as it becomes apparent it is necessary or desirable to make the application (same as all interim applications) PD 23A, para 2.


Grounds (or conditions)
CPR r 25. (1) (a)-(e)
The court may only make an order for an interim payment if:


(a) the D against whom the order is sought has admitted liability; or
(b) C has obtained judgment against that D for damages to be assessed; or:
(c) the court is satisfied that if the claim went to trial, C would obtain judgment for a substantial amount of money against the D from whom he is seeking the order; or
(d) C is seeking an order for possession of land and the court is satisfied that if the case went to trial, D would be held liable to pay C a sum of money for occupation of the land whilst possession claim pending; or
(e) the court is satisfied that if the claim went to trial, C would obtain judgment for a substantial amount of money against at least one of two or more Ds being sued, and all the Ds are either
(i) insured;
(ii) Ds whose liability will be met under the RTA 1988, s. 151 or the MIB; or
(iii) public bodies. (Examiners love this one, apparently)


Would obtain judgement for a substantial amount of money

 civil standard - balance of probabilities
 C will succeed, not is likely to succeed
 "substantial amount" of money, as opposed to a negligible amount. Has to be judged in the context of the case (APA Civil para 25.11)
 2 stage test (Shott Kem Ltd v Bentley [1991] 1 QB 61):
 court considers if C will obtain judgment for a substantial sum
 then the court considers whether to exercise its discretion
 takes into account, at both stages, any set-off, or counterclaim or allegations of contributory negligence r. 25.7(5)


Interim Payment/Summary Judgment

The applications can be made together.

 If the interim payment test is satisfied (C “will” win), it seems virtually impossible that a court could consider that D has real prospects of successfully defending the claim. In such a situation summary judgment should be entered. An interim payment may then be appropriate if SJ is entered for damages to be assessed.  It is not so easy to say an interim payment should be awarded if the court makes a conditional order on the SJ application. A conditional order is suitable where it appears to the court that it is possible the respondent’s case may succeed but improbable that it will do so (PD 24, para 4). If it is “possible” the respondent’s case will succeed for the purposes of SJ, there are obvious problems with simultaneously being satisfied C “would obtain judgment” for the purposes of an interim payment (r. 25.7(1)(c)).
 For the interplay between interim payment and SJ see APA Civil para 25.12 - 25.13


Amount of interim payment

 The court must not make an order for an interim payment of more than a reasonable proportion of the likely amount of the final judgment r. 25.7(4)
 Court must take into account: any set-off, counterclaim, or allegation of contributory negligence to ensure an accurate projection of what the claimant is likely to be awarded r. 25.7(5)
 So, the C should receive now only part of the substantial damages that will be awarded at trial
 The court must consider what is the likely amount of the final judgment and then what would be a reasonable proportion of that amount
 What is a reasonable proportion is in the judge’s discretion
 A viable set-off is likely to affect the amount of damages at trial, as would a reduction for contributory negligence
 The amount payable should not expose D to the risk that the eventual damages would be less than the interim payment: Osunde v Guy’s and St Thomas’ Hospital [2007] EWHC 2275 (Fam) and see APA Civil para 25.17


Need for IP

 There is NO requirement that C has a need to make particular purchases
 This is so despite the procedural requirement in PD 25B, para 2.2(2) - that C’s evidence should cover items or matters in respect of which interim payment is sought
 This is the position where the interim payment is limited to past losses: Eeles v Cobham Hire Services Ltd [2010] 1 WLR 409
 The evidence required by PD 25A may be persuasive on urgency and/or quantum
 But where interim payment is sought in relation to future losses/expenses, it is essential to establish a need for the money
 see generally: APA Civil para 25.17 - 25.2



The fact that an interim payment has been ordered shall not be disclosed to the trial judge until all issues of both liability and quantum have been finally determined: CPR, r. 25.9. The risk that the trial judge may be prejudiced by the interim payment order is an obvious one.


Number of applications

 C is not limited to one application: r. 25.6(2)
 in practice a subsequent application will have to be justified by a material change in circumstances or some other good reason WB Vol 1 para 25.6.7


Claim Form: Remedies
CPR, r. 16.2(1)(b), (c)

The claim form must ... (b) specify the remedy which the claimant seeks;
(c) where the claimant is making a claim for money, contain a statement of value in accordance with r. 16.3;
(cc) where the claimant's only claim is for a specified sum, contain a statement of the interest accrued on that sum ...
r. 16.2(5) The court may grant any remedy to which the claimant is entitled even if that remedy is not specified in the claim form.


Claiming Damages
Nominal Damages

Liability is established, but no compensatable loss has been suffered.
 Available where damage is not an essential element, eg contract, libel
 Not available in negligence because damage is an essential element
 Usually winner pays the costs if all they get is nominal damages


Compensatory Damages
Discussed in more detail below. Broadly falls into:

 Pecuniary awards (special damages), where a measurable money sum can be calculated
 Non-pecuniary awards (general damages), where the court assesses an amount based mostly on conventional awards in similar cases


Aggravated Damages

 Technically a sub-category of Compensatory Damages
 Additional compensation "for the Defendant's objectionable behaviour"
 Compensate for injury to feelings caused by the manner in which the wrong was committed
 Consequently they cannot be awarded to a company, because it has no feelings
 Potentially can be awarded in any class of action, not just tort (Williams v Settle
[1960] 1 WLR 1072, an infringement of copyright case)
 Said to be unavailable in clinical negligence (Kralj v McGrath [1986] 1 All ER 54)
 Must be pleaded separately in the PoC (CPR, r. 16.4(1)(c))


Exemplary Damages

 Technically not compensatory
 "Awarded to show the court's disapproval of the Defendant's behaviour"


Rookes v Barnard [1964] AC 1129: exemplary damages can only be awarded:

(a) where there is oppressive, arbitrary or unconstitutional behaviour by government servants;
(b) where the Defendant's conduct has been calculated to make a profit exceeding the amount that would be awarded by compensatory damages; or
(c) where exemplary damages are expressly authorised by statute.


Liquidated Damages
The sum quantified by a clause in a contract as the sum payable in the event of breach.

Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co [1915] AC 79
 A genuine pre-estimate of the loss occasioned by breach is lawful
 Anything else is illegal as a penalty, and not recoverable


Foreign currency damages
Only if that currency represents the true currency of C's loss: The Despina R [1979] AC 685

PD 16, para 9.1:
Where a claim is for a sum of money expressed in a foreign currency it must expressly state:
(1) that the claim is for payment in a specified foreign currency,
(2) why it is for payment in that currency,
(3) the Sterling equivalent of the sum at the date of the claim, and
(4) the source of the exchange rate relied on to calculate the Sterling equivalent.


Damages for Breach of Contract
Compensatory Principle

Damages for breach of contract are intended to put the Claimant into the position they would have been in if the Defendant had not breached the contract.
Sometimes called expectation loss
This is the main rule.
C is also entitled to consequential losses.
Johnson v Agnew [1980] AC 367
Damages are assessed as at the date of breach.


Golden Strait Corpn v Nippon Yusen Kubisha Kaisha [2007] 2 AC 353

10.7.1998 Charterparty entered into. Included a war clause
14.7.2001 Nippon repudiated the contract
21.3.2003 Gulf War started
6.12.2005 End of charterparty term

Held: On the facts, the Agnew v Johnson principle had to yield to the importance of achieving an accurate assessment of the loss actually incurred. The contract breached included a war clause, and war had broken out which would have entitled Nippon to terminate the contract on 21.3.2003. As Nippon would probably have cancelled the contract at that point, damages were limited to the period between 14.7.2001 and 21.3.2003.


Reliance loss

This compensates the Claimant with a view to putting the Claimant back into the position as if the contract had never been made.
 Compensates C for wasted expenditure
 Sometimes used where expectation loss damages are difficult to quantify
 Cannot be used to enable C to avoid losses incurred through a bad bargain


Causation in Contract

Was the breach of contract an effective cause of the loss?


Contributory Negligence

Not available if the only cause of action is contract.
Is available if liability gives rise to concurrent liability in contract and tort.


Remoteness in Contract
Hadley v Baxendale (1854) 9 Exch 341
Damage is not too remote if either:

(a) the loss flows naturally from the breach of contract; or
(b) the loss can reasonably be supposed to have been in the contemplation of the parties when they entered into the contract as the probable result of breach


The Heron II [1969] 1 AC 350 (and other cases):

Reasonable contemplation if there was a "serious possibility" or "not unlikely"


Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) [2009] 1 AC 61

Charterer delivered the ship 9 days late at the end of a charterparty. As a result the owner had to reduce the daily rate for the follow-on charter to the next charterer by $8,000 a day (for 191 days). The issue was whether damages would be assessed at $8,000 per day for
the length of a new charter, or just the loss to the owner for the additional 9 days on the old charter.

Principle: It is not sufficient that a particular loss is “not unlikely” if, as a matter of law, it is not reasonable to assume the defendant had undertaken responsibility for the loss. This is not merely a question of probability, but also of what the contracting parties had to be taken to
have had in mind, having regard to the nature and object of their business transaction.
Held: Damages were restricted to the loss (based on the difference between the market rate and the charter rate) on the over-run period of 9 days.


Measure of Loss
Where goods are delivered but not paid for, the claim is for the price (Sale of Goods Act 1979 (SoGA 1979), s. 49), and not a claim for "damages".

49(1) Where, under a contract of sale, the property in the goods has passed to the buyer and he wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may maintain an action against him for the price of the goods.

Breach of SoGA implied terms as to quality (SoGA 1979, s. 53) This is a claim by the buyer of goods, who by SoGA 1979, s. 53 is entitled to:
 Loss directly and naturally resulting in the ordinary course of events from breach
 Prima facie this is the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if no breach (s. 53(3))
SoGA 1979, s. 53 (remedy for breach of warrant) "53(1) Where there is a breach of warranty by the seller, or where the buyer elects (or is compelled) to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods; but he may—
(a) set up against the seller the breach of warranty in diminution or extinction of the price, or (b) maintain an action against the seller for damages for the breach of warranty.
(2) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.
(3) In the case of breach of warranty of quality such loss is prima facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had fulfilled the warranty.
(4) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price does not prevent him from maintaining an action for the same breach of warranty if he has suffered further damage."


In consumer contracts the consumer (Consumer Rights Act 2015, s. 19) may exercise:

(a) the short-term right to reject (ss 20 and 22);
(b) the right to repair or replacement (s. 23);
(c) the right to price reduction (s. 24);
(d) the final right to reject (s. 20); and
(e) any other remedy, including claiming damages and the s. 53 set-off (s. 19(11)).


Mental distress, disappointment, loss of enjoyment

Generally these are not recoverable in contract: Addis v Gramophone Co Ltd [1909] AC 488
Exceptions are:
 Holiday cases eg Jarvis v Swan Tours Ltd [1973] QB 233
 Contracts to protect the claimant from annoyance or distress: Heywood v Wellers [1976] QB 446


Property Damage as a result of Breach of Contract

 Usually diminution of value
 Sometimes: cost of reinstatement
Recovery of damages based on the cost of reinstatement depends on whether it will be, or was, reasonable to insist on remedial work being done.
 A factor is whether C has already done the work, or the degree to which C shows a sufficient intention of having the work done
 Where the cost of reinstatement is out of all proportion to the advantage gained by the work it will be unreasonable for C to insist on the work
 See Ruxley Electronics v Forsyth [1996] AC 344 (the swimming pool that should have been 7 feet 6 inches deep but was only built to 6 feet 9 inches).


Loss of amenity

Loss of Amenity
This was the solution applied in Ruxley Electronics v Forsyth. Loss of amenity damages awarded at £2,500.



 C is required to take reasonable steps to minimise its losses
 If C in fact avoids a loss by taking steps after D's breach, C cannot recover for the avoided loss
 If C seeks to take reasonable steps to mitigate, C is entitled to recover the loss or expense in taking those steps


Damages in Tort
General Principle

Overall aim – compensation for the loss suffered as a result of the defendant’s tort – to place the claimant, as far as possible, in the position he or she would have been in had the injury not occurred.
Lawrence v Fen Tigers Ltd [2014] UKSC 13, [2014] AC 822
Nuisance damages are usually based on the reduction in value of C's property caused by the nuisance. Exceptionally, it may be right to award damages based on the benefit to the defendant of not being injuncted.


Factual Causation

Ask yourself the following questions:-
 What would have happened if there was no breach?
 What in fact happened?
 What is the difference between the two?

Legal causation in tort
Basically a "but for" test.
Did the tort make a material contribution to the damage?


Contributory Negligence
The Law Reform (Contributory Negligence) Act 1945, s. 1(1) provides:

“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not
be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage …”


In deciding the level of contributory negligence the court must consider:

(a) The causative potency of the acts or omissions of both parties; and
(b) The relative blameworthiness of both parties. Degree of blameworthiness is the more important factor.


Remoteness in Tort

The test for remoteness in negligence is reasonable foreseeability.
 It is not necessary to show the exact type or extent of the damage was foreseeable


Pure Economic Loss

 Basic point is that damages are not awarded for pure economic loss.
 But financial loss flowing from physical damage is recoverable.



There is a duty to mitigate.
Burden of proof is on D to show C has failed to mitigate


Personal Injuries Damages

Awards comprise:
 Damages for Pain, Suffering and Loss of Amenity (“PSLA”)
 Damages for Past Losses of Earnings etc
 Damages for Future Losses of Earnings etc
 Interest
BUT the Defendant retains the amount on the CRU certificate (recoverable State Benefits),
and pays that to the Department of Work and Pensions.


Aggravated; Exemplary and Provisional Damages

Consider the facts in Lewis v Russell (see WBK pages 5 to 10).
(a) Is this a suitable case for aggravated damages?
(b) Is this a suitable case for exemplary damages?
(c) Is this a suitable case for provisional damages?